* Local Rule 47.5 provides: "The publication of opinions

that have no precedential value and merely decide particular

cases on the basis of well-settled principles of law imposes

needless expense on the public and burdens on the legal

profession." Pursuant to that Rule, the court has determined

that this opinion should not be published.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

__________________

No. 95-50368

Summary Calendar

__________________

ROMERO GRANDO TREVINO, JR.,

 Petitioner-Appellant,

versus

WAYNE SCOTT, Director,

Texas Department of Criminal Justice,

Institutional Division,

 Respondent-Appellee.

- - - - - - - - - -

Appeal from the United States District Court

for the Western District of Texas

USDC No. MO 94-CA-099

- - - - - - - - - -

December 5, 1995

Before HIGGINBOTHAM, DUHE' and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

The motion of Romero Granado Trevino, Jr., to proceed in

forma pauperis is GRANTED. Carson v. Polley, 689 F.2d 562, 586

(5th Cir. 1982). Trevino's motion for a certificate of probable

cause (CPC) to appeal the denial of his petition filed pursuant

to 28 U.S.C. § 2254 is also GRANTED. Barefoot v. Estelle, 463

U.S. 880, 893 n.4 (1983)
No. 95-50368

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Trevino argues that he received ineffective assistance of

counsel because his court-appointed counsel coerced him into

pleading guilty. A valid guilty plea waives all

nonjurisdictional defects including an ineffective-assistance-ofcounsel claim, unless the ineffective-assistance claim affects

the voluntariness of the plea. Smith v. Estelle, 711 F.2d 677,

682 (5th Cir. 1983), cert. denied, 466 U.S. 906 (1984).

Trevino challenges the validity of his plea to the extent that he

argues that the trial court failed to admonish him of the full

range of punishment he faced. Trevino contends that the trial

court, in failing to "admonish" him, violated Article 26.13 of

the Texas Code of Criminal Procedure. 

Trevino raised this argument for the first time in the

district court in his response to the respondent's motion for

summary judgment. Neither the respondent nor the district court

addressed this issue. The district court should have construed

Trevino's response as a motion to amend his petition and granted

it. See Sherman v. Hallbauer, 455 F.2d 1236, 1242 (5th Cir.

1972) (memo opposing summary judgment raised a new issue and

should have been treated as a motion to amend and granted).

Trevino raised the issue after the respondent conceded

exhaustion of state remedies. In his state-court application for

habeas relief, Trevino argued that the trial judge "[k]new before

he excepted [sic] this petitioner['s] `guilty plea' that [his]

attorney had not `admonished' [him] of his plea, nor the

Governing Laws of the Case of Burglary, nor . . . [his] Fifth

Amendment rights to self-incrimination. . . ." In support of
No. 95-50368

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his argument, Trevino cited, among other authorities, Texas Code

of Criminal Procedure 26.13. Article 26.13(a)(1) provides: 

"Prior to accepting a plea of guilty . . ., the court shall

admonish the defendant of . . . the range of the punishment

attached to the offense." 

The trial court denied the application. The Texas Court of

Criminal Appeals denied the application without written order. 

The record reflects, therefore, that Trevino exhausted his statecourt remedies as to this claim. See Picard v. Connor, 404 U.S.

270, 275 (1971); Deters v. Collins, 985 F.2d 789, 795 (5th Cir.

1983) (exhaustion requirement is satisfied when the substance of

a federal habeas corpus claim has been fairly presented to the

highest state court). 

Neither the district court nor the respondent addressed

Trevino's challenge to his guilty plea. A guilty plea involves

the waiver of several constitutional rights, and, accordingly, it

must be made knowingly and voluntarily. Boykin v. Alabama, 395

U.S. 238, 242-44 (1969). A federal habeas court will uphold a

guilty plea if it was knowing, voluntary, and intelligent. Hobbs

v. Blackburn, 752 F.2d 1079, 1081 (5th Cir.) (§ 2254 case), cert.

denied, 474 U.S. 838 (1985). Before accepting a guilty plea, a

trial court must ascertain that the defendant "has a full

understanding of what the plea connotes and of its consequence." 

Boykin, 395 U.S. at 243-44. The defendant must be informed of

the maximum sentence he may receive. Hobbs, 752 F.2d at 1082.

Counsel's affidavit does not indicate that he discussed the

range of punishment for Trevino's offense. Further, the record
No. 95-50368

-4-

 

** The trial court's failure to meet Boykin's requirements

does not render the plea involuntary if the evidence adduced at

an evidentiary hearing shows that the defendant understood the

charge and its consequences, or if the record indicates that

defense counsel explained the nature of the offense to the

defendant or that the defendant otherwise understood the charge. 

Hobbs, 752 F.2d at 1080.

does not contain a transcript of a plea colloquy and thus,

presents no basis to presume that Trevino knew the full range of

punishment for the offense before pleading guilty. Because the

record is inadequate to determine whether defense counsel** or

the court informed Trevino of the full range of punishment, the

case is REMANDED for an evidentiary hearing. See Rogers v.

Maggio, 714 F.2d 35, 39 (5th Cir. 1983).